Wednesday, February 29, 2012

"The Supreme Court on Tuesday morning appeared divided along party lines, with a conservative majority ready to hold that corporations cannot be held accountable in federal courts for international human rights violations.

The Court was hearing oral argument in Kiobel v. Royal Dutch Petroleum, which was brought under a founding-era law, commonly called the Alien Tort Statute, that allows foreign nationals to bring civil lawsuits in U.S. federal courts "for a tort only, committed in violation of the law of nations or a treaty of the United States." The 12 Nigerian plaintiffs contend that Shell Oil's parent company aided and abetted the Nigerian government in its torture and extrajudicial killing of environmental and human rights protesters resisting Shell's operations in Nigeria in the 1990s."

"The ATS was almost never invoked between the 18th century and the 1980s, at which time human rights organizations dusted it off and deployed it to bring justice to victims of human rights atrocities abroad. In the only Supreme Court pronouncement on the scope of the right to sue under the ATS, the court in 2004 found that ATS could be used to redress violations of a small number of well-established customary international norms. The court was not clear about whether the well-established customary norms would determine who was liable, or merely the actions for which they could be sued. The 2nd Circuit Court of Appeals determined in 2010 that there is no customary international norm of corporate liability and decided in favor of Shell. Three other courts of appeals have found that there is corporate liability under the ATS..."

While SCOTUS interprets the law as it relates to this case, a law which was passed in 1789 by the very same people who drafted the Constitution, they do so in the shadow of Citizen's United.

Ian Millhiser parsed the oral arguments and notes Justice Anthony Kennedy's statement that "in the area of international criminal law... there is a distinction made between individuals and corporations."

"Kennedy, of course, was the author of Citizens United, which declared that corporations have the exact same rights as actual human beings for purposes of spending money to influence elections. Yet, when a corporation engages in mass atrocities, they are suddenly entitled to legal immunities far beyond those available to people."EMPHASIS MINE

The conservative wing of the Supreme Court appears to be readying itself to declare exactly that. This is ugly, but it's not that simple.

"Kiobel v. Royal Dutch Petroleum, is totally unrelated to the Citizens United decision. What the Court decides, at least in theory, should have everything to do with how the justices approach international law."

Here's where it gets very complicated.

'The real trouble for the justices hearing Kiobel is that nothing is "well-settled" under the Alien Tort Statute. The methods used by the lower courts to come to their opposite conclusions were not much more than newly created paths custom-beaten to lead to their preferred result. Now there is a veritable parade of ideologically driven parties, from multinational corporations and human rights organizations to conservative and liberal legal academics, who have submitted friend-of-the-court briefs hoping to lure the justices toward their favored destinations.

In an ironic twist, the conservative justices, who loudly resist being influenced by foreign legal trends, can look to European interpretations of U.S. law as the best cover for now discovering corporate immunity from international human rights allegations. In briefs filed in support of Royal Dutch Petroleum, the United Kingdom and Netherlands governments wrote that they have long opposed "overly broad assertions of extraterritorial civil jurisdiction" based on foreigners' claims against foreign defendants for alleged activities in foreign countries. The German government took a similar stance. These positions arose out of all three nations' express preference for multilateral agreements to resolve such problems, rather than unilateral action by any one country's courts.

Bluntly relying on these kinds of policy preferences may be a better path for the Supreme Court than pretending to fashion a decision out of nonexistent precedents and ideologically rigged legal arguments. Doing so will not eliminate the accusations of pro-business bias, but it will deter the accusations of disingenuousness that still plague the Citizens United decision."

The Roberts Court has brought this upon themselves. We're it not for the mischievousness of their prior activism, this case wouldn't be on page one.